Jharkhand High Court
Syed Shaquib Ashraf @ Syed Shaquib Raza @ ... vs The State Of Jharkhand on 6 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 922 of 2024
Syed Shaquib Ashraf @ Syed Shaquib Raza @ Sayad Shaquib Raza, son
of Amin Ashraf, aged about 31 years, resident of Road No.12, Main
Road Baganshahi Sahara Nursing Home, P.O.-Azadnagar, P.S.-Mango,
Dist.-East Singhbhum
.... Petitioner
Versus
The State of Jharkhand
.... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Shailesh Poddar, Advocate
For the State : Mrs. Shweta Singh, Addl. P.P.
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to
quash the order dated 01.09.2023 passed by the learned Judicial
Magistrate 1st Class, Ranchi along with the entire criminal
proceeding in connection with Namkum P.S. Case No. 269 of 2023,
corresponding to G.R. No.2436 of 2023 by which cognizance has
been taken by the learned Judicial Magistrate 1st Class, Ranchi for the
offences punishable under Sections 147, 148, 149, 307, 353, 427, 337,
332, 188, 189, 504 and 506 of Indian Penal Code.
3. The allegation against the petitioner is that the petitioner being
member of unlawful assembly armed with deadly weapons
attempted to murder the police personnel and assaulted and used
criminal force against the public servant in execution of their duty as
such public servant and committed mischief by vandalizing the
valuable property of Y.B.N. University, voluntarily caused hurt to
public servant and also caused hurt to several persons by indulging
in rash and negligent acts to endanger human life and held out
threat to deter the public servant and intentionally insulted the
invigilators of the pharmacy examination and other persons present;
thereby giving provocation to them intending and knowingly it
likely that such provocation will cause them to break public peace.
4. It is submitted by the learned counsel for the petitioner by relying
upon the paragraph no.20 of the judgment of Hon'ble Supreme
Court of India in the case of C. Muniappan & Ors. vs. State of Tamil
Nadu reported in MANU/SC/0655/2010 and submits that as Section
195 (a) (i) of the Code of Criminal Procedure bars the court from
taking cognizance of any offence punishable under Section 188 of
Indian Penal Code or abetment or attempt to commit the same,
unless there is a written complaint by the public servant concerned,
for contempt of his lawful order and in this case as no public servant
concerned submitted any written application for abetment of his
lawful order nor any superior officer of such public servant has
submitted any written complaint rather the case was instituted on
the basis of the written report basing upon which FIR of the case has
been registered. Hence, it is submitted that the learned Magistrate
has committed gross illegality by taking cognizance for the offence
punishable under Section 188 of Indian Penal Code.
5. It is next submitted by the learned counsel for the petitioner that
the allegation against the petitioner are all false and no offence
punishable under Sections 307, 332, 504 and 506 of Indian Penal
Code is made out and similarly, none of the other offences in respect
of which cognizance has been taken; is also not made out. It is
further submitted by the learned counsel for the petitioner that
though it has been specifically mentioned in the FIR that CCTV
footage of the incident is there but the same has not been appended
anywhere in the criminal proceeding and the petitioner is not named
in the FIR. Hence, it is submitted that order dated 01.09.2023 passed
by the learned Judicial Magistrate 1st Class, Ranchi along with the
entire criminal proceeding in connection with Namkum P.S. Case
No. 269 of 2023, corresponding to G.R. No.2436 of 2023 be quashed
and set aside.
6. Learned Additional Public Prosecutor on the other hand opposes
the prayer of quashing the entire criminal proceeding but fairly
submits that no written complaint has been filed by any public
servant, the order promulgated of whom has been violated. It is next
submitted by learned Addl. P.P. that it is a settled principle of law
the even if a person is not named in the FIR, but if during
investigation of the case his involvement is found out, such person
can be cited as an accused in the charge sheet. It is then submitted by
learned Addl. P.P. that in the case diary there is ample material
which has come through the statement of the witnesses whose
statement has been mentioned in paragraph nos. 5, 6, 7, 8, 19 and 31
of the case diary as has been mentioned by the learned Judicial
Magistrate hence, at this stage it would not be proper by this Court
to enter into the merits of the allegation by conducting a mini trial. It
is then submitted that there is ample material in the record for
commission of each of such offences in the case diary which was
collected during the investigation of the case, as mentioned in the
case diary. Hence, it is submitted that this criminal miscellaneous
petition being without any merit be dismissed.
7. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that so far as the offence punishable under Section 188 of Indian
Penal Code is concerned; Section 195 (a) (i) of the Code of Criminal
Procedure bars the court from taking cognizance of any offence
punishable under Section 188 of Indian Penal Code or abetment or
attempt to commit the same, unless there is a written complaint by
the public servant concerned, whose order has been violated but it is
crystal clear that no such public servant who promulgated any order
and whose order has been violated has not submitted any written
complaint hence, this Court has no hesitation in holding that the
learned Magistrate has committed a grave error by taking the
cognizance for the offence punishable under Section 188 of Indian
Penal Code.
8. So far as the other offences are concerned, it is a settled principle of
law that the Court should not embark upon the inquiry as to
whether the evidence is reliable or not as that would be the function
of the trial court as has been held by the Hon'ble Supreme Court of
India, in the case of State of M.P. vs. Awadh Kishore Gupta & Ors.
reported in (2004) 1 SCC 691.
9. It is also a settled principle of law that a legitimate prosecution
cannot be stifled by the Court in exercise of its jurisdiction under
Section 482 Cr.P.C. as has been held in the case of Monica Kumar
(Dr. )and Another vs. State of Uttar Pradesh and others reported in
(2008) 8 SCC 781.
10. Now coming to the facts of the case, the learned Judicial Magistrate
1st Class, Ranchi has referred the concerned paragraphs where the
witnesses have stated about the ingredients of the offence for which
the cognizance has been taken by the learned Judicial Magistrate 1st
Class, Ranchi. There is no whisper in this criminal miscellaneous
petition about the veracity of the said portion of the order passed by
the learned Judicial Magistrate 1st Class, Ranchi wherein it has been
categorically mentioned by the learned Judicial Magistrate 1st Class,
Ranchi that the witnesses have stated about the ingredients of the
offence for which the learned Judicial Magistrate 1st Class, Ranchi
has taken cognizance.
11. Under such circumstances, this Court is of the considered view that
there is no justifiable reason to interfere with the rest portion of the
said order dated 01.09.2023 for which cognizance has been taken or
to quash the entire criminal proceeding.
12. Hence, this Court is not inclined to interfere with the order dated
01.09.2023 except the offence punishable under Section 188 of Indian
Penal Code is concerned.
13. In view of the discussion made above, it is made clear that the
portion of the order dated 01.09.2023 passed by the learned Judicial
Magistrate 1st Class, Ranchi in connection with Namkum P.S. Case
No. 269 of 2023, corresponding to G.R. No.2436 of 2023 is set aside so
far as the offence punishable under Section 188 of Indian Penal Code
is concerned but it is made clear that the said order dated 01.09.2015
is maintained so far as the rest of the offences for which cognizance
has been taken and the prayer to quash the entire criminal
proceeding being without any merit is dismissed.
14. This criminal miscellaneous petition is disposed of accordingly.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 6th May, 2024
AFR/Sonu-Gunjan/-
